Micco v. Huser

• Decision Date: 20 December 1938
• Docket Number: Case Number: 28618
• Citation: 185 Okla. 394,91 P.2d 1069,1938 OK 655
• Parties: MICCO, Gd'n. v. HUSER, County Judge, et al.
• Court: Oklahoma Supreme Court

1938 OK 655

91 P.2d 1069

185 Okla. 394

MICCO, Gd'n. v. HUSER, County Judge, et al.

Case Number: 28618

Supreme Court of Oklahoma

Decided: December 20, 1938

Syllabus

¶0 1. JUDGMENT--Res Judicata--Where Two Actions Pending at Same Time, First Final Judgment Renders Matter Res Judicata in Other Suit Regardless of Which Action Was Begun First.

"Where two actions involving the same issue or issues between the same parties or their privies, are pending at the same time, so that a final judgment in one would be res judicata or a bar in the other, when the judgment in one becomes final it may be urged in the other by appropriate proceedings, regardless of which action was begun first. It is the first final judgment, although it may be in the second suit, that renders the matter res judicata in the other suit." Jackson v. Haney, 166 Okla. 13, 25 P.2d 771.

2. GUARDIAN AND WARD--Determination of Jurisdictional Facts and Appointment of Guardian by One County Court as Bar to Proceedings in Another County Court for Appointment of Another Person.

"Where the county court of one county has found as a fact and there judicially determined the jurisdictional 'facts necessary to proceedings in the appointment of a guardian of the person and estate of a minor and has by order appointed a guardian for such minor, the jurisdiction thus acquired is exclusive, and such an order appointing such guardian should be recognized as a bar to proceedings for the appointment of another person as guardian in another county court of this state, when the former appointment is called to the attention of the latter court before an appointment is made in the latter court." Jackson v. Haney, 166 Okla. 13, 25 P.2d 771.

3. SAME--Insane Persons--Exclusive Jurisdiction of County Court First Appointing Guardian Over Person and Estate of Incompetent Though Like Proceedings Had, Been Commenced in Another County.

Where a county court of this state appoints a guardian over the person and estate of an incompetent person, and such proceedings are regular upon their face, the same are not subject to attack collaterally, and the court having assumed jurisdiction and made the appointment, the jurisdiction thus assumed excludes the jurisdiction of the county court of every other county in the state, and the county court of another county is without jurisdiction to thereafter appoint a guardian for the same incompetent, although proceedings to that end had been commenced in such other county prior to the commencement of proceedings in the county where the order appointing is first made.

Original action for writ of prohibition by Hettie Micco, guardian of Peter Micco, an incompetent, against E. Huser, County Judge of Okfuskee County, and others. Writ granted.

Joe Brown, Sam Clammer, and Frank Settle, for petitioner.

Rogers, Stephenson & Dickason and C. W. Clift, for respondents.

RILEY, J.

¶1 This is an original action seeking a writ of prohibition, commanding E. Huser, county judge of Okfuskee county, Tom Hazlewood, special county judge, R. L. Davis and J. H. Doggett, respondents, to desist and refrain from further proceedings in a case in the Okfuskee county court entitled "In the matter of the Guardianship of Peter Micco, an Incompetent," and to terminate said guardianship proceedings.

¶2 The case presents a conflict in jurisdiction between the county court of Tulsa county and the county court of Okfuskee county, as to the appointment of a guardian for Peter Micco, an Indian incompetent. It appears that on March 23, 1938, George Deer, as a friend of Peter Micco, filed his petition in the county court of Okfuskee county, asking for the appointment of a guardian over the. person and estate of said Peter Micco. The petition was regular in form and was duly verified. The petition prayed for the appointment of R. L. Davis as such guardian. E. Huser was and is the county judge of Okfuskee county, and on the same day the petition was filed, entered an order for hearing thereon for March 31, 1938, and directing that notice thereof be given to Peter Micco, at least five days before said hearing. Notice was issued and served upon Peter Micco in person on the same day.

¶3 The hearing was continued from time to time until May 19, 1938. In the meantime, upon request of Sam Clammer, appearing as attorney for Peter Micco, E. Huser had certified his disqualification as county judge, and Tom Hazlewood was elected as special county judge.

¶4 In the meantime, on the 12th day of May, 1938, Hettie Micco, wife of said Peter Micco, joined by Joe Brown, probate attorney, and as a friend of Peter Micco, filed in the county court of Tulsa county a petition for the appointment of a guardian for the said Peter Micco, and on May 18, 1938, when said petition coming on for hearing in said court in Tulsa county, an order was made and entered appointing Hettie Micco guardian of the person and estate of said Peter Micco. She qualified as such guardian that day. On May 19, 1938, appearing specially, she filed a motion in the ease in Okfuskee county to dismiss proceedings therein for appointment of a guardian, setting up the proceedings theretofore had in the county court of Tulsa county wherein Hettie Micco had been appointed by the county court of Tulsa county.

¶5 At the same time Dennie H. Petty, probate attorney of district No. 2, which ineludes Okfuskee county, appeared and orally objected to further proceedings in Okfuskee county. The motion to dismiss and objections of the probate attorney were denied and hearing was had resulting in an order appointing R. L. Davis and J. H. Doggett as guardians of the person and estate of said Peter Micco.

¶6 Petty, probate attorney, gave notice of appeal to the district court. Whether the appeal has been perfected does not appear.

¶7 Thereupon Hettie Micco, as guardian of said Peter Micco, filed herein the petition for writ of prohibition. Alternative writ was issued, and respondents have filed their response and a supplemental response. In the Supplemental response, respondents request that Sam Clammer, J. A. Brown, United States Probate Attorney, and Jerome Fischer, judge of the county court of Tulsa county, be made parties to this action, to the end that they may be prohibited from acting further in the matter of the guardianship in Tulsa county.

¶8 By the response it is made to appear that on the 18th day of May, 1938, and before hearing in the Tulsa county case, George Deer asked and obtained leave to file "amicus curiae" application to dismiss the proceedings in Tulsa county for want of jurisdiction. Therein he set up substantially all the proceedings theretofore had in Okfuskee county; it was also alleged:

"* * * That after the filing of the said petition and the issuance and service of said notice hereinabove mentioned, it is the opinion of your petitioner that Peter Micco was induced to attempt to change his residence temporarily by designing persons, in an attempt to defeat the jurisdiction of the county court of Okfuskee county, Okla., and that your petitioner verily believes that said sojourn in Tulsa county, Okla., is temporary and has been brought about in an attempt to defeat the jurisdiction of the county court of Okfuskee county, said Okfuskee county being the actual residence of the alleged incompetent and the county in which his property is located and situated. * * *

"Your petitioner further states that Okfuskee county, Okla., is the actual residence of the alleged incompetent, and that the county court of Okfuskee county, Okla., took jurisdiction of this subject matter on the 23rd day of March, 1938, and that said matter has been pending in said court of Okfuskee county, Okla., since said time, and that Tulsa county, Okla., is not the residence of said alleged incompetent, and that this court does not have jurisdiction of the person and estate of the said alleged incompetent, for the reason that the jurisdiction of the county court of Okfuskee county. Okla., had attached before the filing of the petition herein and for the further reason that Tulsa county, Okla., is not the actual residence of the alleged incompetent."

¶9 Thus purporting to act "as friend of the court" rather than in his own behalf, he raised the question of the county of the actual residence of said Peter Micco at the time of said hearing, contending that his residence was in Okfuskee county at that time.

¶10 It is conceded, of course, that guardians appointed in both counties cannot administer the estate at the same time.

¶11 It appears to be conceded that Peter Micco was an actual resident of Okfuskee county at the time petition was filed and the notice served in that county, and that he moved to Tulsa county on or about the 4th day of April, 1938. It is not conceded, however, that he has been an actual resident in good faith of that county. But the county court of Tulsa county necessarily found that he was a resident of Tulsa county. Although appeal was perfected to the district court of Tulsa county, we must treat said finding and judgment as final and binding until the same has been reversed or modified on appeal.

¶12 Petitioner contends that the rule in such matters is that where the county court of one county has found as a fact and then judicially determined the jurisdictional facts necessary to proceedings in the appointment of a guardian, and has by order appointed a guardian, the jurisdiction there acquired is exclusive, and that such order is a bar to guardianship proceedings in any other county of this state.

¶13 It was so held in Powers v. Brown, 122 Okla. 40, 252 P. 27. But in that case the proceedings were first commenced in Latimer county, and the first order appointing was made in that county, and its order was upheld as against a subsequent order appointing a guardian in another county on proceedings begun after the commencement of proceedings in Latimer county. The decision, however, is not based alone upon priority of commencement of...